In the James Case, the Court noted that “Plaintiff Michelle James was a guest at Harrah’s Resort Atlantic City…after she and a friend…were provided with the free hotel room by the Resort…Plaintiff was woken up in the middle of the night by a ‘severe itching and burning sensation’ and found bed bugs ‘scattering across her bed’ after she turned on the lights and removed the top sheet from her hotel bed.
In this week’s article, we examine the case of James v. Harrah’s Resort Atlantic City, 2016 WL 7408845 (D.N.J. 2016) involving allegations by a hotel guest of physical and emotional injuries caused by bed bugs. In the James case the Court noted that “Plaintiff Michelle James alleges that she contracted bed bugs during a stay at Harrah’s Resort Atlantic City… Essentially, Plaintiff claims that the hotel beached its duty to provide its guests with a safe environment and failed to properly train employees in how to detect and report bed bugs, causing here severe pain and lasting emotional distress. Pending now before the Court is Defendants motion to exclude Plaintiff’s expert…and Plaintiff’s motion for partial summary judgment on certain claims and issues in the case”. See also: Cerreta v. Red Roof Inns, Inc., 2016 WL 4611689 (M.D. Pa. 2016)(bed bugs; motion to strike demand for punitive damages denied as premature in the absence of discovery).
Terror Targets Update
In Several people wounded in ax attack at Dusseldorf train station, etn.travel (3/9/2017) it was noted that “Police in Dusseldorf have arrested at least two people following an ax attack at the city’s main train station…Up to five people were understood to have been injured in the attack…’They just came in here and attacked with an axe. I saw many things in my life, but I have never seen anything like this. He just started hitting people with an axe’”.
In Mashal & Abed, After Deadly Attack on Kabul Hospital, ‘Everywhere Was Full of Blood’, nytimes.com (3/8/2017) it was noted that “Gunmen disguised as medical staff members stormed the main military hospital in Kabul on Wednesday, killing at least 30 people and wounding dozens in an attack that was claimed by the Islamic State and that highlighted the country’s deteriorating security situation. Afghan forces struggled for seven hours to evacuate the crowded hospital and end the siege, killing all of the perpetrators of the audacious attack”.
Travel Ban Update
In Kanter, E.U. Lawmakers Call for End to Visa-Free Travel for Americans, nytimes.com (3/3/2017) it was noted that “The European Parliament has passed a nonbinding resolution calling for the reintroduction of visa requirements for American citizens, raising the stakes in a long-running battle over the United States’ refusal to grant visa-free access to citizens of five European Union countries…European lawmakers played tit-for-tat in their dispute with the United States, demanding restrictions on American travelers unless the Trump administration lifts travel requirements for
citizens of Bulgaria, Croatia, Cyprus, Poland and Romania”.
In Thrush, Trump’s New Travel Ban Blocks Migrants From Six Nations, Sparing Iraq, nytimes.com (3/6/2017) it was noted that “The new order continued to impose a 90-day ban on travelers, but it removed Iraq, a redaction requested by Defense Secretary Jim Mattis, who feared it would hamper coordination to defeat the Islamic State…It also exempts permanent residents and current visa holders, and drops language offering preferential status to persecuted religious minorities, a provision widely interpreted as favoring other religious groups over Muslims. In addition, it reversed an indefinite ban on refugees from Syria, replacing it with a 120-day freeze that requires review and renewal”.
In Denney, Travel Ban Foes Vow to Press Cases in Wake of New Executive Order, newyorklawjornal.com (3/6/2017) it was noted that “New York Attorney General Eric Schneiderman and other opponents of the Trump administration’s first order restricting travel from certain Muslim-majority countries and suspending the United States’ refugees program vowed to fight the second, more limited order announced on Monday”. The case is Darweesh v. Trump, 17-cv480 (E.D.N.Y.). See also IRAP v. Trump (S.D. Md.).
In Burns, Hawaii Sues to Block Trump Travel Ban; First Challenge to Order, nytimes.com (3/8/2017) it was noted that “President Trump’s immigration policies faced a pair of new challenges in court on Wednesday, as the attorney of Hawaii alleged that Mr. Trump had violated the Constitution with his redrawn executive order banning travel from predominantly Muslin countries. And in California, the city attorney of San Francisco asked a federal judge to issue an injunction blocking another executive order which threatens to withdraw funding for so-called sanctuary cities that do not extensively cooperate with federal immigration enforcement officials”.
Uber’s “Grayballing” Authorities
In Isaac, How Uber Deceives the Authorities Worldwide, nytimes.com (3/3/2017) it was noted that “Uber has for years engaged in a worldwide program to deceive the authorities in markets where its low-cost ride-hailing service was resisted by law enforcement or, in some instances, had been banned. The program, involving a tool called Greyball, uses data collected from the Uber app and other techniques to identify and circumvent officials who were trying to clamp down on the ride-hailing service. Uber used these methods to evade the authorities in cities like Boston, Paris and Las Vegas, and in countries like Australia, China and South Korea. Greyball was part of a program called VTOS, short for ‘violation of terms of service’ which Uber created to root out people it thought were using or targeting its service improperly. The program, including Grayball, began as early as 2014 and remains in use, predominantly outside the United States. Grayball was approved by Uber’s legal team. Grayball and the VTOS program were described to The New York Times by four current and former Uber employees…Uber’s use of Grayball was recorded on video in late 2014…At that time, Uber has just started its ride-hailing service in Portland without seeking permission from the city, which later declared the service illegal. To build a case against the company, officers like (Mr. X and others) posed as riders, opening the Uber app to hail a car and watching miniature vehicles on the screen make their way toward potential fares. But unknown to (Mr. X and others)…some of the digital cars they saw in the app did not represent actual vehicles. And the Uber drivers they were able to hail also quickly canceled. That was because Uber had tagged (Mr. X and others)-essentially Greyballing them as city officials-based on data collected from the app and in other ways. The company then served up a fake version of the app, populated with ghost cars, to evade capture. At a time when Uber is already under scrutiny for its boundary-pushing workplace culture, its use of the Greyball tool underscores the lengths to which the company will go to dominate its market. Uber has long flouted laws ans regulations to gain an edge against entrenched transportation providers, a modus operandi that has helped propel it into more than 70 countries and to a valuation close to $70 billion”.
In Wakabayashi, Uber Sees to Prevent Use of Greyball to Thwart Regulators, nytimes.com (3/8/2017) it was noted that “The ride-hailing service Uber said on Wednesday that it would prohibit employees from using a program called Greyball to thwart regulators. Uber’s new policy pertaining to the use of Greyball, a tool the company developed to show individual versions of its app, comes in the aftermath of a New York Times article that out
Uber And Charges Of Harassment
In Manjoo, Uber Case Could Be a Watershed for Women in Tech, nytimes.com (3/1/2017) it was noted that “Few women in Silicon Valley were surprised by the revelations about Uber detailed this month by Susan Fowler, a software engineer who published an expose on the culture of sexism and sexual harassment that she said she battled during her year at the ride-hailing company. For many women in Silicon Valley, the contours of Ms. Fowler’s story rang true from sorry experience. There are tales like hers across the tech industry…Still, the Uber scandal feels different. It feels like a watershed. For gender-diversity advocates in the tech industry, Ms. Fowler’s allegations, and the public outcry they have ignited, offer a possibility that something new may be in the offing. What could happen? Something innovative: This could be the start of a deep long-term and thorough effort to remake a culture that had long sidelined women-not just at Uber but across the tech business, too…At the moment, Uber’s brand is in tatters. It has weathered a long series of scandals and controversies stemming from its aggressive fight against regulators and competitors. Customers refuse to give it the benefit of the doubt…few spring to its defense”.
Uber’s Attitude In Nairobi
In Attitude of UBER boss seen as root cause for unrest, etn.travel (3/2/2017) it was noted that “The honeymoon for UBER drivers in Nairobi is now clearly over as drivers returned to the streets following another strike, aimed to compel the company to pay them higher tariffs and take less commission. Competition in Kenya’s capital, including from Little Rides, backed by telecom giant Safaricom, forced UBER’s local management to revise tariffs downwards to protect their market share, but the move resulted in bad blood with their drivers almost instantly. Given the rising cost of fuel in Kenya, and other inflationary pressures, drivers have indicated that unless they are given a must better deal than presently offered by the company, they may ditch UBER and become independent operators once again or else join other groups”.
Travel Around The Moon
In Chang, SpaceX Plans to Send 2 Tourists Around Moon in 2018, nytimes.com (2/27/2017) it was noted that SpaceX, the ambitious rocket company headed by Elon Musk, wants to send a couple of tourists around the moon and back to Earth before the end of next year. If they manage that feat, the passengers would be the first humans to venture that far into space in more than 40 years…’This would be a long loop around the moon’, Mr. Musk said…The two people would spend about a week inside one of SpaceX’s Dragon 2 capsules, launched on SpaceX’s falcon Heavy rocket. The spacecraft would be automated, but the travelers would undergo training for emergencies. (The cost would be) ‘A little bit more than the cost of a crewed mission to the space station would be’ he said. The Falcon Heavy itself has a list price of $90 million”.
Restoring Reefs In The Maldives
In Billock, New Priority for Ocean Resorts: Restoring Reefs, nytimes.com (2/23/2017) it was noted that “Last April (Ms. X) stood on a beach in the Maldives feeling frustrated. The coral reef was bleaching, turning into a ghost reef with pale, stressed corals…(Ms. X) is the resident marine biologist at Outrigger Konotta Maldives Resort. She’s heading the resort’s collaboration with a local dive team and the German Museum of Oceanography and Fisheries in an initiative called Outrigger Ozone, a program designed to rebuild and regrow damaged coral reefs off the property’s tiny island. April’s bleaching was the latest in a series of global warming-and human-related assaults on the reef; this one attacked the reef she had already worked to restore, setting back her progress significantly”.
Car Free Vacations
In Glusac, Car-Free Vacations for the Urban Traveler, nytimes.com (2/20/2017) it was noted that “Weekend trips to cities like Boston, Chicago or San Francisco rarely require a rental car to get around, given the extensive public transportation systems. But more unexpected locales are joining the car-optional list as new and expanding rapid transit options take root across the country. Many major transit systems, like those in New York, predate the ubiquity of cars and serve densely populated urban areas. Now, younger and less dense cities, like Denver, are adding trains and streetcars. Even places most closely associated with cars, like Detroit and Los Angeles, are remaking transit networks once ripped out to make way for Fords, Chevys and Chryslers”.
Roll Out The Yoga Mat
In La Gorce, To Court Millennials, Hotels Are Rolling Out The Yoga Mat, nytimes.com (2/27/2017) it was noted that “studies have also shown the wisdom of using fitness to market to millennial travelers. In the summer travel tracker survey conducted last year by American Express Travel, 49 percent of millennials said they wanted an on-site gym as one of the most important features at a hotel. Hotels have been moving in that direction. The American Hotel and Lodging Association found that 85 percent of hotels had fitness facilities last year, up from 63 percent in 2004. Hotel chains like Even, which has six hotels and five in the pipeline with rooms starting around $199 a night, are doing more than offering fitness options. Everything from the green smoothies served at its Cork & Kale café to the mesh bags offered to guests to deposit their sweaty clothes in-the clothes are returned washed, dried and folded within two hours-is tailored to the idea of promoting health”.
Travel Law Article: The James Case
Plaintiff admits to having inspected the bed sheets before lying down and admits that [she] did not observe any bed bugs at that time…Plaintiff took several photos of the bugs that she found in her bed and called the front desk to complain…the Resort moved her to a new room in a different tower…Plaintiff filed a Guest Incident Report with the Resort reporting the bed bug incident”.
Harrah’s Bed Bug Protocol
“Harrah’s protocol regarding bed bugs at the time of Plaintiff’s incident in 2013 was as follows: if a guest room attendant discovered a problem with bed bugs while cleaning a room, he or she was supposed to report it to a supervisor, who noted the room for Ecolab, a pest control service, to inspect and treat on the next available day. If a guest reported a problem with bed bugs, the front desk notified housekeeping, which noted the room for Ecolab (which) came to the Resort every morning, Monday through Friday, and inspected and treated the rooms that had been reported with pest problems…Ecolab generated its own report documenting pest problems”.
No “Bug Traps”
“Harrah’s did not use mattress encasements or other ‘bed bug entrapment devices, or traps’ in its hotel rooms and the rooms did not have written warnings to guests to check the room for bed bugs. According to Plaintiff, Harrah’s received ‘84 insect-related Guest Incident Reports from 2012-2013, nine Code Enforcement Complaints from Atlantic City Code Enforcement, and hundreds of Eco-Lab inspection invoices for bed bug related work’ but failed to include any of those records as part of the record before this Court on the instant motions”.
“Harrah’s housekeepers were trained to identify and deal with bugs, and supervisors were ‘always…talking about prevention of bed bugs’…Bed bug training was provided by means of a video…New guest room attendants had two weeks of daily training from 9-5 at the Resort when they first started…Follow-up trainings are required of all guest room attendants ‘every year twice a year’”.
“Plaintiff discarded many of her belongings when she returned home from her stay…She suffered bites on her left shoulder and wrist, some of which left permanent scars. She ‘still suffers severe mental anguish, humiliation, anxiety, nightmares and insomnia as a result of the incident’ and has ‘great difficulty falling asleep in a dark room and has problems sleeping through the night’”.
The Daubert Motion
“Defendants seek to bar Plaintiff from referencing her expert’s report and to preclude his testimony at the time of trial…Defendants object that Mr. Sutor is not qualified to render an opinion on a hotel’s bed bug policies because his experience is ‘adjacent to, but not actually encompassing, the subject matter of his testimony…Mr. Sutor admits that he has never worked in housekeeping or for an extermination company…and he is not an expert in the control of bed bugs and had to do his own research in order to prepare his expert report. Defendants also point out that Mr. Sutor admits that he does not know what, specifically, Harrah’s does to take care of bed bugs…and that he does not known, and did not do any research into, Ecolab’s inspection and extermination services provided to Harrah’s Resorts”.
Plaintiff’s Expert’s Reports Stricken
“In addition to Mr. Sutor’s lack of education, training and experience in matters of public health, and the lack of a reliable methodology underlying the opinions about industry norms in combating bed bug infestations in hotels, the proffered opinion also suffers from a lack of ‘fit’. The requirement that an expert’s opinion must fit the circumstances of the case assures that the witness’s specialized opinion is pertinent to the relevant area of inquiry of the case. The first area of lack of fit is the factual circumstances-he renders an opinion about the supposed deficiencies without actually knowing and considering Harrah’s protocol for bed bugs and the nature of Ecolab’s services in Harrah’s guest rooms. The second area of lack of fit pertains to the subject matter itself: Mr. Sutor, with experience in hotel security, attempts to portray thus bed bug case as a security mater and offers views about what the defendant’s security department should have done. The case presents, instead, an issue of sanitation and health in detecting and eradicating insects from hotel rooms. Mr. Sutor admittedly has no experience addressing such problems”.
The Nuisance Claim
“Plaintiff seeks summary judgment on her claims of nuisance, breach of contract, breach of warranties and malicious, willful and intentional business practices and on issues including the cause of Plaintiff’s injuries…Plaintiff’s nuisance claim is premised on the allegations that the ‘bed bug infestation deprived Plaintiff of a safe, healthy and comfortable use of’ the Resort and that ‘dangerous and defective conditions’ of the Resort ‘constituted a nuisance and presented an unreasonable interference with the Plaintiff’s use and enjoyment of the hotel room’…Whether Defendants’ bed bug protocol constitutes a failure to act that resulted in an ;intentional and unreasonable interference’ with Plaintiff’s use of her hotel room presents a factual question better left for trial”.
Breach Of Contract
“The parties dispute whether a contract was legally formed between Plaintiff and Harrah’s Resort and accordingly the Court will deny Plaintiff’s motion for summary judgment on her breach of contract claim. The parties dispute whether there as a ‘meeting of the minds’ as to the terms of the purported contract, whether paying taxes and fees on a complimentary hotel room can constitute valid consideration and what, if any, compensatory damages Plaintiff suffered…even if a contract were legally created, Plaintiff has not met her burden of proof to show that the presence of bed bugs in her hotel room constitutes a breach of any particular term of that contract. These disputes present questions for a jury to resolve”.
Breach Of Warranties
“Plaintiff’s breach of warranties claim arises from her belief that Harrah’s made, and failed to perform, ‘explicit and implicit promises’ to provide a safe and habitable hotel staffed with housekeeping who were adequately trained. Plaintiff’s claim appears to raise two different species of breach of warranty claims: breach of express warranty and breach of implied warranty of habitability…Because factual questions remain over what, if any, ‘affirmations, promises or descriptions’ of Harrah’s Resorts rooms were made, and whether those representations are actionable on a breach of warranty claim or more puffery, the Court will deny Plaintiff’s motion for summary judgment (on breach of express warranty. However, Plaintiff’s breach of implied warranty claim is dismissed since) No New Jersey court has recognized an action for breach of implied warranty of habitability by a hotel guest”.
Malicious Business Practices
“Plaintiff’s malicious…business practices claim is premised on allegations that ‘Defendants owed a duty of care to the Plaintiff…to ensure that nothing unjustifiably interferes with a guest’s use and enjoyment of his or her hotel room, to provide a safe environment for those persons…and to ensure that each hotel room was free from any bed bug infestation’ and that Defendants breached that duty by, inter alia, ‘knowingly and deliberately’ failing to hire, train and supervise adequate housekeeping and security staff, by failing to maintain adequate procedures in place to prevent bed bug incidents from re-occurring; and by reducing its budget and cutting hotel staff…
(Noting that the New Jersey Supreme) explicitly declined to recognize a claim in ‘prima facie tort’ (the Court also held that) even if this count did present a cognizable claim, Plaintiff has adduced no evidence that Defendant engaged in any intentional conduct towards her in particular”. Summary judgment denied.
Thomas A. Dickerson is a retired Associate Justice of the Appellate Division, Second Department of the New York State Supreme Court and has been writing about Travel Law for 41 years including his annually updated law books, Travel Law, Law Journal Press (2016), Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2016), Class Actions: The Law of 50 States, Law Journal Press (2016) and over 400 legal articles many of which are available at nycourts.gov/courts/9jd/taxcertatd.shtml. For additional travel law news and developments, especially, in the member states of the EU see IFTTA.org
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